In re Domestic Air Transportation Antitrust Litigation

144 F.R.D. 421, 1992 WL 329054
District Court, N.D. Georgia·Decided October 14, 1992·No. No. 1:90-CV-2485-MHS; MDL No. 861·Published·Cited by 12 cases

Opinion

[423]*423ORDER

SHOOB, Senior District Judge.

Presently before the Court are motions filed on behalf of class members-objectors Andrew Hudders et al. (“objectors”) for intervention and to compel production of documents. For the reasons stated below, the Court will deny the class members’ request for intervention and will grant in part and deny in part the motions to compel.

Intervention

The objectors move for intervention in this action to insure “standing to seek discovery, preserve appeal rights, and otherwise protect the interests of the class.” Class Member-Objectors’ Brief in Support of Motion to Compel Discovery, for Intervention, and for Extension of Objection Period at 12. Other than stating that their desire to intervene is in response to plaintiffs’ contention that the objectors have no standing to seek discovery, objectors present no legal argument concerning the necessity of their intervention.

It is unclear from objectors’ application whether they seek intervention as of right or permissive intervention. The Eleventh Circuit has outlined the requirements for intervention as of right under Federal Rule of Civil Procedure 24(a) as follows: The party seeking to intervene as of right under Rule 24(a)(2) must show that:

(1) his application to intervene is timely; (2) he has an interest relating to the property or transaction which is a subject of the action; (3) he is so situated that disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) his interest is represented inadequately by the existing parties to the suit.

Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir.1989). The proposed intervenor must establish each of the four requirements for intervention as of right.

There is no need for the Court to review whether objectors meet the first three requirements as they have failed to make any showing of the fourth requirement, inadequate representation. This requirement “is satisfied if the [proposed intervenor] shows that representation of his interests [by existing parties in the case] ‘may be inadequate’ and that ‘the burden of making that showing should be treated as minimal.’ ” Id. at 1214, citing Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972). In certifying the class in this action, the Court found that the named plaintiffs adequately portray the interests of the class, and that they are represented by competent and experienced counsel. Order dated May 8, 1991, at pp. 5-6. Objectors not only fail to make a minimal showing of inadequate representation, they neglect even to allege that the representation of existing parties is insufficient. The mere assertion that you should be permitted to intervene as of right does not create an entitlement to intervention. The Court does not find objectors entitled to intervention as of right based upon the limited argument presented in their application.

Permissive intervention is proper where “an applicant’s claim or defense and the main action have a question of law or fact in common.” Fed.R.Civ.P. 24(b). Whether to permit intervention rests within the Court’s discretion, and the Court should “consider whether the intervention will unduly delay or prejudice adjudication of the rights of the original parties.” Id.

The Court can find no compelling reason to permit the proposed intervention. The denial of intervention will not prejudice objectors’ ability to protect their interests. The Notice to the class of the settlements advised class members of their right to object and to appear through counsel at the fairness hearing. Pretrial Order No. 8 dated July 13, 1992, Exhibit A at 19. Objectors have obviously availed themselves of that right, having stated their intention to object and filing an entry of appearance of counsel for the purpose of participating at the hearing. In addition, for many of the reasons stated below, objectors would be no more entitled to the discovery they seek as intervenors than they are as class members. Accordingly, the Court will deny objectors’ application for intervention.

[424]*424 Motions to Compel

Objectors have amended their original motion to compel to encompass their most recent, narrowed discovery requests filed on September 21, 1992.1 The original discovery requests sought information concerning the parties’ assessment of, among other things, the merits of the case, discovery taken, and the proposed settlement. The revised requests, while still seeking information about the parties’ assessments and the content of settlement negotiations, now seek information concerning specific provisions of the proposed settlement.2

Class members who object to a settlement of a class action do not have an absolute right to conduct discovery and presentation of evidence.

The court, in its discretion, may limit the discovery or presentation of evidence to that which may assist it in determining the fairness and adequacy of the settlement____ The criteria relevant to the court’s decision of whether or not to permit discovery are the nature and amount of previous discovery, reasonable basis for the evidentiary requests, and number and interests of objectors.

2 Herbert B. Newberg, Newberg on Class Actions § 11.56 at 476 (2 ed. 1985). Discovery should allow objectors meaningful participation in the fairness hearing without unduly burdening the parties or causing an unnecessary delay. United States ex rel. McCoy v. California Medical Review, Inc., 133 F.R.D. 143, 149 (N.D.Cal.1990).

Interrogatory No. 1 requests information from each airline defendant concerning the carrier’s present and projected net worth as well as the content of any discussions concerning the airlines’ net worth during settlement negotiations. Insofar as defendants’ financial stability and their inability to provide significant amounts of cash in settlement of this action are grounds for seeking approval of the settlement, information concerning the actual financial position of the defendant airlines is relevant to the Court’s consideration of fairness. However, objectors are not entitled to discovery concerning settlement negotiations between the parties in the absence of evidence indicating that there was collusion between plaintiffs and defendants in the negotiating process. Mars Steel Corp. v. Continental Illinois Nat’l Bank & Trust Co., 834 F.2d 677, 684 (7th Cir.1987). Objectors have neither alleged nor submitted evidence of collusion in the settlement negotiating process and all indications to the Court thus far indicate that the settlement process was an arm’s length dealing between all parties.

Defendants intend to submit affidavits, on or before October 15, 1992, concerning their financial condition. Brief of American Airlines, Inc., Delta Airlines, Inc., United Airlines, Inc., USAir, Inc., Trans World Airlines, Inc., Continental Airlines, Inc. and Airlines Tariff Publishing Company, Inc.

Free access — add to your briefcase to read the full text and ask questions with AI

In re Domestic Air Transportation Antitrust Litigation, 144 F.R.D. 421, 1992 WL 329054 (N.D. Ga. 1992).

144 F.R.D. 421 (In re Domestic Air Transportation Antitrust Litigation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Graham v. Peltz
S.D. Ohio, 2021
Pallister v. Blue Cross & Blue Shield of Montana, Inc.
2012 MT 198 (Montana Supreme Court, 2012)
In re Checking Account Overdraft Litigation
830 F. Supp. 2d 1330 (S.D. Florida, 2011)
Rivera-Platte v. First Colony Life Ins. Co.
173 P.3d 765 (New Mexico Court of Appeals, 2007)
Rivera-Platte v. First Colony Life Insurance
2007 NMCA 158 (New Mexico Court of Appeals, 2007)
Hemphill v. San Diego Ass'n of Realtors, Inc.
225 F.R.D. 616 (S.D. California, 2005)
United Wisconsin Services, Inc. v. Mylan Laboratories, Inc.
205 F.R.D. 24 (District of Columbia, 2001)
Bloyed v. General Motors Corp.
881 S.W.2d 422 (Court of Appeals of Texas, 1994)
White v. National Football League
822 F. Supp. 1389 (D. Minnesota, 1993)